Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [71]
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THE END OF CIVIL RIGHTS
After hearing my argument to this point, a lawyer friend accuses me of playing doctor without the penicillin. “It’s true the law doesn’t shield people from assimilation in the areas you’ve mentioned,” he says. “But it does better in the cases of religion and disability, where it requires that difference be accommodated. If you’re concerned about coerced conformity, accommodation is your most powerful weapon.”
He’s right to some degree. Like all outsider groups, religious minorities and people with disabilities are asked to cover. Unlike other groups, they have a formal legal right to accommodation. Accommodation means that absent a reason for demanding conformity, the state or employer must bend toward the individual, rather than vice versa. In theory, accommodation is the antidote to coerced covering.
In practice, however, this antidote is in short supply. Far from embracing the accommodation principle, the courts have limited it, even in the areas of religion and disability. This limitation fascinates me, as it suggests some nonlegal force is pressing the courts toward favoring assimilation across different areas of doctrine. I wonder what that force is, and whether it spells the end of civil rights.
A colleague of mine is an Episcopalian priest as well as a tenured law professor. Some of our colleagues worry he is spread too thin over the two vocations. Yet he “flaunts” his religious identity, proclaiming his faith and teaching at the intersection of theology and law. When I ask him why, he says it is for his students. “In the academy, being a believer means your intellectual credibility takes a savage hit,” he says. “I’m open about my faith to show my religious and intellectual identities are compatible.”
My surge of identification with him reminds me that despite our frequent political differences, religionists and gays share a special bond. In fact or in the imagination of others, we can engage in all three forms of assimilation. When Mormons led the charge against same-sex marriage in Hawaii in the 1990s, I was struck by how I could retell the history of Mormonism as I have retold the history of gays—as a movement from coerced conversion, through passing, toward covering. In the nineteenth century, Mormons were forced to convert their religion by repudiating the practice of polygamy. Those who refused—self-described Mormon fundamentalists cast off by the Mormon church—went underground, practicing plural marriage in a form of “Don’t ask, don’t tell.” More recently, authorities have turned a blind eye to polygamists who cover, reserving prosecutions for flaunters like Tom Green. Chargeable polygamy is now apparently defined as marrying more than one person and going on Jerry Springer.
In the new millennium, many religious minorities are entering their covering phase. For many American Jews, the question has shifted from whether they should convert or pass to whether they are “Too Jewish?”—the title of a museum exhibit that traveled the nation in 1997. Riv-Ellen Prell describes women who straighten their noses or hair to achieve a “Queen Elizabeth exterior” while retaining a “Jewish heart.” Abraham Korman recounts how Jewish men in corporate settings must “give up many of the symbolic behaviors that tie them to their Jewish heritage,” with the yarmulke having “particular significance as a symbol to be avoided.” Academics like Phyllis Chesler describe how Jews are sanctioned for writing on Jewish topics. And journalism professor Samuel Freedman notes in his book Jew vs. Jew that American Jews are increasingly breaking apart based on whether their primary associations are with gentiles or other Jews.
In exploring Jewish covering, I take pleasure in how the concepts I have been wrestling with have all been captured in the vernacular.